The Plan to Circumvent the
Presidential Election Process is based on Deception and
Disinformation

Several years ago, a
plan was hatched to circumvent the electoral system designed by the
Founders for electing the President and Vice President of these
United States. The plan, if adopted, will infuse a national popular
vote into the system without amending the Constitution. This article
will examine the electoral system and the plan to circumvent it.

The Federal Convention

During
the debates in the Federal [Constitutional] Convention of 1787, James
Wilson, a delegate from Pennsylvania, said in reference to the manner
in which the executive (president) was to be selected:

‚€œ This
subject has greatly divided the House, and will also divide the
people out of doors. It is in truth the most difficult of all on
which we have had to decide

Adoption
of the electoral process came late in the Convention, which had
previously adopted, on four occasions, provisions for election of the
executive by Congress and had twice defeated proposals for direct
election by the people.

Selection
of the executive by Congress was rejected because it was feared there
would be collusion between a presidential candidate and Congress.
Elbridge Gerry, a delegate to the Convention from Massachusetts
expressed this objection as follows:

"There
would be a constant intrigue kept up for the appointment. The
Legislature & the candidates would bargain and play into one
another‚€™s hands, votes would be given by the former under promises
or expectations from the latter, of recompensing them by services to
members of the Legislature or to their friends"

Direct
election by the people was rejected for two reasons. First,
was the belief that the people were uninformed of the character of
the candidates and liable to deception. John Mercer of Maryland said:

"The
Constitution is objectionable in many points, but in none more than
the present. The people can not know & judge of the characters
of Candidates. The worse possible choice will be made.‚€

The
other reason the Founders rejected direct election by the people was
the fear that the larger States would control the presidency.
Connecticut delegate Oliver Ellsworth stated:

"The
objection drawn from the different sizes of the States to be
unanswerable. The Citizens of the largest States would invariably
prefer the Candidate within the State; and the largest States would
invariably have the man‚€

As
a result of these objections, the Convention adopted an electoral
system that interposed a representative called an elector. The
electors were to be men of superior discernment, virtue and
information who would select the president and vice president
according to their own will and without reference to the immediate
wishes of the people. Their only obligation was to select, in their
judgment, the most qualified candidates.

The Electoral College System

The electoral process
is set forth in Article II, Section I, Clauses 2-4 of the
Constitution for the United States of America. Clause 3 has been
superseded by the 12th Amendment as ratified by the several States in
1804. Provisions of the 12th Amendment have been superseded by the
20th Amendment as ratified by the States in 1933. (See also Section 3
of the 14th Amendment.)

When the American
people cast their vote in a presidential election they are actually
voting for individual within their State called an elector. The
electors are representatives just like the members of Congress.
Unlike members of Congress who are elected for a specific term of
years and cast numerous votes while in office, electors perform a
single function once every four years. They are entrusted with the
responsibility of voting for the President and Vice President of
these United States.

The legislature of
each
State is authorized by Article II, Section I, Clause 2 of the
Constitution to prescribe the mode for appointing its electors.

‚€œEach State shall
appoint, in such Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress:
but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an
Elector.‚€

For several years
after
the adoption of the Constitution the States simply appointed their
electors. The people did not participate in the presidential election
process. The legislatures have abandoned this practice and adopted a
democratic popular vote within each State and the District of
Columbia as the method for determining which party‚€™s slate of
electors will be elected to vote for their State. The District was
made part of the electoral process in 1961 with the adoption of the
23rd Amendment.

The electors chosen
to
vote for each State are those of the political party that wins a
plurality of the popular vote within the State. For example. If an
Independent Party candidate won the popular vote in California by one
vote, then that party‚€™s slate of electors is elected to vote for
the State of California. This is called the winner take all rule.
Since there is no constitutional provision mandating a winner take
all rule, the method of allocating electoral votes is left to the
discretion of each State.

Maine and Nebraska do
not use the winner take all method. In these States, two electors are
chosen at-large by the statewide popular vote and the rest are
selected by the popular vote in each congressional district. This
allows for a split slate of electors to be chosen in those two
States.

The formula for
determining the number of electors for each State is set forth in
Article II, Clause 2 (See above). Every State receives one elector
for each congressional Representative and one elector for each of its
two Senators. If a State has (4) Representatives and (2) Senators, it
would have (6) electoral votes. Since each State is guaranteed at
least one Representative and two Senators, the minimum number of
electors for any State is 3.

Note:
The
23rd Amendment restricts the District of Columbia to a number of
electors equal to the least populous State in the Union.

The
total number of electoral votes for the United States and the
District of Columbia is 538 (435 Representatives‚€•100 Senators‚€•3
District of Columbia). Based on 538 potential votes, a candidate
would need a minimum of 270 electoral votes to win the presidency.
Under this system, a candidate can constitutionally win the election
with a decided majority of the people against him. It is also
possible for a candidate to win the election with a decided majority
of the States against him. During the 2008 election, eleven States
had a total of 271 electoral votes, 1 vote more than the minimum
number necessary to win the election. The other 39 States and the
District of Columbia had 267 votes, 3 votes short of the minimum
number.

Under the electoral
system, the so-called national popular vote is a fictional number
that does not have any bearing on the outcome of an election. The
elections in each State and the District of Columbia are the only
votes that count because electors are elected on the basis of a
state-by-state vote‚€”not a national vote. Under our federal system
of government, the democratic process was designed to take place in
the States.

The Electoral College is a Key Component of Our
Federal System of Government and a Check on the Abuse of Power

In
the North Carolina Convention debating ratification of the proposed
constitution, William Davie stated that the States control the
election of the president and this would be a check on the federal
government:

‚€œIs
not this government a nerveless mass, a dead carcass, without the
executive power? Let your representatives be the most vicious demons
that ever existed; let them plot against the liberties of America;
let them conspire against its happiness,‚€”all their machinations
will not prevail if not put in execution. By whom are their laws and
projects to be executed? By the President. How is he created? By
electors appointed by the people under the direction of the
legislature‚€”by a union of the interest of the people and the state
governments. The state governments can put a veto,
at any time, on the general government, by ceasing to continue the
executive power.‚€

James
Wilson made the following remarks in the Pennsylvania Convention:

‚€œThe
President of the United States is to be chosen by electors appointed
in the different states, in such manner as the legislature shall
direct. Unless there be legislatures to appoint electors, the
President cannot be chosen; the idea, therefore, of the existing
government of the states, is pre-supposed in the very mode of
constituting the legislative and the executive departments of the
general government. The same principle will apply to the judicial
department. The judges are to be nominated by the President, and
appointed by him, with the advice and consent of the Senate. This
shows that the judges cannot exist without the President‚€¶.‚€

The
importance of the Electoral College in our federal system of
government was made crystal clear by Abel Upshur in his 1868 book,
The Federal Government:
Its True Nature and Character:

‚€œSo
absolutely is the Federal Government dependent on the States for its
existence at all times, that it may be absolutely dissolved, without
the least violence, by the simple refusal of a part of the States to
act. If, for example, a few States, having a majority of electoral
votes, should refuse to appoint electors of President and
Vice-President, there would be no constitutional Executive, and the
whole machinery of government would stop. ‚€

The ability of the
States to exercise this control over the federal government has been
diluted by the 20th Amendment, which grants Congress the power to
appoint a president until a selection is made. However, it is clear
that the Founders intended the Electoral College system to be a key
component of the federal system of government because the States
could use the electoral process to check the abuse of power.

The Plan to Circumvent the Electoral College
System

In my opinion, the
Electoral College system is under attack by the same progressive
mentality that engineered the adoption of the Seventeenth Amendment.
An organization is pushing a plan known as: The National Popular
Vote Interstate Compact Plan.
Using the interstate compact provision of the Constitution (Article
I, Section 10, Clause 3), their Plan would award all of a State‚€™s
electors to the candidate who won the national popular vote
irrespective of whether that candidate was on their ballot or won the
State‚€™s popular vote. For example. If your State adopted the Plan
and a candidate won the popular vote by a landslide but lost the
so-called national popular vote, your State would award all of its
electors to the candidate rejected by your voters.

On their web-site,
the
folks at the National Popular Vote have this to say about the Plan:

‚€œThe National
Popular Vote bill would guarantee the Presidency to the candidate who
receives the most popular votes in all 50 states (and the District of
Columbia).‚€

‚€œThe shortcomings of
the current system stem from the winner-take-all rule (i.e., awarding
all of a state‚€™s electoral votes to the candidate who receives the
most popular votes in each state).‚€

‚€œBecause of the
winner-take-all rule, a candidate can win the Presidency without
winning the most popular votes nationwide.‚€

‚€œUnder the
National Popular Vote bill, all the electoral votes from the enacting
states would be awarded to the presidential candidate who receives
the most popular votes in all 50 states (and DC). The bill would take
effect only when enacted by states possessing a majority of the
electoral votes ‚€” that is, enough electoral votes to elect a
President (270 of 538). The bill would replace the current
state-by-state system of awarding electoral votes with a system
guaranteeing the Presidency to the candidate who wins the most
popular votes in all 50 states (and DC).‚€

The winner take all
rule is not mentioned in the Constitution so the statement that it is
one of the ‚€œshortcomings of the current system‚€ is a bit
misleading because it gives the casual reader the opposite
impression. You must go to other documents on their site for
clarification.

Some of the proposals
to amend the Constitution and replace the Electoral College with a
direct popular election have a provision that requires the winning
candidate to receive 40 or 50 percent of the total vote. If no
candidate meets the 40 or 50 percent threshold, there is a run-off
election between the top 2 candidates.

Under the Interstate
Compact Plan, a candidate simply needs to win a majority of the total
votes cast. There is no run-off provision. Under this Plan, there is
a chance a candidate could win with as little as 15 or 20 percent of
the total vote.

At the present time, 7 States and the
District of Columbia, possessing 77 electoral votes have enacted the
plan into law. This represents 29% of the 270 electoral votes needed
to activate the plan.

The Attack on the Electoral College System is
Based on Deception and Disinformation

The National Popular
Vote claims the Electoral College system is defective and contrary to
democracy because a candidate could win the mythical national popular
vote but lose the electoral vote. That is like saying the baseball
team that scored more runs in the World Series should be declared the
winner even though the other team won the 4 games necessary to win
the 7 games series. This assertion is simply a straw man argument
because the Constitution did not establish a national system of
government or a national democracy.

This plan
is
just another attack on the federal system of government established
by the Constitution in the name of a system of government that was
rejected by the individuals who wrote and adopted the Constitution.

The Constitution did not Establish a Democracy

The National Popular
Vote is built on a false premise because the Constitution did not
establish a democracy; it established a republican or representative
form of government. Under this system of government, the people do
not exercise the powers of government directly. They exercise it
through representatives. The presidential election process is a
component of the representative system of government established by
the Constitution. In fact, the electoral system is a representative
institution just like the House of Representatives and United States
Senate. Under our representative form of government, the people have
no direct voice on any law proposed or passed by either branch of
Congress. In Congress, the vote rests with the representative
irrespective of the national will of the American people. The
Electoral College was structured to be an extension of this
principle. Electors cast their votes for the president and vice
president in the same manner as members of Congress cast their votes.
The presidential elections in each State and the District of Columbia
are a vote to determine which representatives (electors) will vote
for the president and vice president. In Congress the final vote on
any pending legislation rests with the representatives‚€”not the
people. In a similar manner, the final vote for the president and
vice president, as intended by the Founders, rests with the electors.

Since there are 51
separate elections in the several States and the District of
Columbia, as opposed to a single national election, a candidate can
win the so-called national popular vote but lose the electoral vote.
According to the National Popular Vote, this is unfair because it
could thwart the will of the majority.
Thus, their underlying criticism is‚€•the
national majority does not choose the president and
this is contrary to democracy.

This
criticism is misleading because they omitted two very important facts
concerning the system of government established by the Constitution.
First,
the Constitution did not consolidate the several States or their
people into a single nation. During the debates in the Federal
Convention the delegates rejected the proposals to establish a
national government. Instead, they elected to retain the federal
system of government that had been established by the Articles of
Confederation. Thus, the Constitution maintained the limited union
between the several States; it did not dissolve this union and
establish a single nation of individuals. Second,
the Founders viewed democracy, government exercised directly by the
people, as one of the worst systems of government ever devised
because it allows the majority to use the political process to
infringe on the life, liberty and property of the minority. As a
result, they designed a republican form of government to shield the
people from the adverse effects of democracy.

During
the debates in the Federal Convention, Governor Edmund Randolph of
Virginia introduced a resolution proposing that ‚€œa
Republican Government...ought to be guarantied by the United States
to each state.‚€ During the
debates that followed, Alexander Hamilton stated:

‚€œWe
are now forming a republican government. Real liberty is neither
found in despotism or the extremes of democracy, but in moderate
governments.‚€

The
word republican, as used above and in the writings of the Founders is
synonymous with the word representative.

Luther
Martin, Attorney General of Maryland, made the following observation
during the debates in the Federal Convention:

‚€œThis
general government, I believe, is first upon earth which gives checks
against democracies‚€¶.‚€

One
of those checks was the Electoral College system, which interposed a
representative into the election process called an elector. The
electors, as stated previously, are representatives just like members
of Congress.

Under the federal
system of government established by the Constitution, there are no
national elections in which a majority of the American people vote
for members of Congress. Instead, there are separate democratic
elections in each of the several States. The Electoral College system
is a mirror image of this process because the United States is a
union of sovereign States; it is not a nation of individuals, as
comprising a single nation. The National Popular Vote wants to
shatter this mirror and have the president elected under a national
format while members of Congress will continue to be elected under a
federal format.

Critics
of the Electoral College always fail to acknowledge that the system
balances power between the legislative and executive branches of the
federal government. It does that by giving each of the several States
the same percentage of power in the selection of the president as it
has in Congress. For example, if a State has 8 representatives and 2
senators, it has 10 total votes in Congress. This State would also
have 10 electoral votes in a presidential election.

Contrary
to the assertions made by the National Popular Vote, the Electoral
College is rooted in representative government and the federal system
of government established by the Constitution‚€”not national
democracy. Their plan would infuse national democracy into a federal
system of government. It would also interject national democracy into
a representative form of government. This would turn the Constitution
on its head. The National Popular Vote has either lost sight of these
two constitutional principles or is intentionally omitting them from
the debate in an effort to effect a radical change in the system of
government established by the Founders.

The fundamental
principle of a democracy is there is nothing to restrain the will, or
the votes of the majority except the majority itself. An example of
this principle is two wolves and a sheep voting on what‚€™s for
dinner. The federal nature of the Electoral College system restrains
the adverse effects of national democracy because 51 separate
democratic elections prevents a presidential candidate from pandering
to, or inciting, a majority to the American people as a ploy to win
the presidency.

Note:
The Constitution was not ratified by a national popular vote and
cannot be amended by a national popular vote. The Constitution was
ratified and can only be amended on a State-by-State vote. Since the
method for electing the president is a mirror image of ratification
and amendment process, the attempt to label the Electoral College
system as a defective process is disingenuous‚€”to say the least.

Constitutional
Problems with the Interstate Compact Plan

The National Popular
Vote claims their Interstate Compact Plan is constitutional. I
disagree and can see several legal/constitutional problems with their
plan.

Interstate compacts,
as
stated in the book published by the National Popular Vote ‚€œare
specifically authorized by the U.S. Constitution as a means by which
the states may act in concert to address a problem.‚€

When a candidate wins
the Electoral College vote and a majority of the so-called national
popular vote, the system is functioning as designed. By the same
token, when a candidate wins the Electoral College vote but does not
receive a majority of the so-called national popular vote, the system
is functioning as designed. Thus, there is no real problem to address
through the interstate compact clause relative to the Electoral
College.

The folks at the
National Popular Vote are attempting to pervert the purpose of this
Clause and use it to make the election of a president contingent upon
a national popular vote. In other words, they are attempting to use a
clause of the Constitution to institute a method of election rejected
by the Founders without resorting to the amendment process.

Article I, Section
10,
Clause 3 of the Constitution states:

‚€œ No State shall, without the
Consent of Congress‚€¶enter into any Agreement or Compact with
another State‚€¶.‚€

The National Popular
Vote claims congressional consent is not required for their
Interstate Compact Plan. Because this would certainly be challenged
in court, they are working to get legislation introduced in Congress
giving congressional consent to the Plan.

This could be a lose
lose for their Plan. If the Plan goes forward without consent, a
court could invalidate it. If the Plan cannot pass both Houses of
Congress or is defeated by Congress, then a court could view a
rejection by Congress as proof the Plan is not within the scope of
the interstate compact provision.

In spite of their
assertions, I believe congressional consent would be required
assuming it can pass the proper subject test for an interstate
compact.

Article IV, Section 4
of the Constitution states:

‚€œ The United States
shall guarantee to every State in this Union a Republican Form of
Government‚€¶.‚€

In other words, the
States collectively shall guarantee to the States individually a
representative form of government. The electors of a State are
elected representatives just like the legislature of that State.
Under the National Popular Vote, the representatives in the
legislature are making the election of the representatives entrusted
with the constitutional duty of voting for their State dependent upon
the vote of the people in the other 49 States and the District of
Columbia. Thus, if the people of a State voted for the electors of
candidate A but candidate B won the national popular vote, the people
of that State would be disenfranchised because their vote for elected
representatives would be negated through a law passed by other
elected representatives. Thus, their Plan is inconsistent with the
representative form of government clause of the Constitution.

In my opinion, this
is
the key to defeating their use of the interstate compact provision.
One provision of the Constitution cannot be used to negate another
provision.

Conclusion

In order to preserve
the federal nature of the presidential election process, it may be
necessary to amend the Constitution and mandate the winner take all
rule in every State and the District of Columbia. Contrary to the
assertions by the National Popular Vote, the Constitution established
a federal system of government‚€”not a national one. An amendment
mandating the winner take all rule would immediately nullify the
National Popular Vote Plan.

If the National Popular Vote is
implemented and direct popular election is infused into the system,
the process will degenerate into pure democracy with the people
throwing their support to whichever candidate promised to give them
the most government largess.

Cicero, an
intellectual
of ancient Rome, wrote that the man usually chosen as the leader in a
democracy is ‚€œ[s]omeone bold and unscrupulous...who curries
favor with the people by giving them other men‚€™s property.‚€

Under the National Popular Vote,
without the checks and balances of the Electoral College system, it
would be much easier for a president to become the type of leader
Cicero warned against.

A
1994 article in the Congressional
Quarterly stated:

‚€œThe
Constitution did not provide authority for political parties or
prohibitions against them. Historians have pointed out that most of
the Framers had only a dim understanding of the function of political
parties and thus were ambivalent, if not hostile, toward parties when
they laid down the foundation of the new government.

The
Founders set up what they regarded as safeguards against excesses of
party activity by providing an elaborate governmental system of
checks and balances. The prevailing attitude of the convention was
summed up by James Madison, who wrote in The
Federalist
that the ‚€˜great object‚€™ of the new government was ‚€˜to secure
the public good and private rights against the danger of such a
faction' and at the same time to preserve the spirit and form of
popular
government.‚€™

Madison‚€™s
greatest fear was that a party would become a tyrannical majority.
This could be avoided, he believed, through the republican form of
government that the proponents of the Constitution advocated. In The
Federalist
Madison wrote, ‚€˜Among the numerous advantages promised by a
well-constructed Union, none deserved to be more accurately developed
than the tendency to break and control the violence
of (party) faction. A
republic, as understood by Madison, was an elected body of wise,
patriotic citizens, while a democracy was equated with mob rule.
Madison dismissed the democratic form of government as a spectacle of
‚€˜turbulence and contention.‚€™‚€

This is exactly what the Founders
were
trying to prevent by incorporating the Electoral College system into
the Constitution as one of the safeguards to protect the people of
these United States from the adverse effects of national democracy.

Your comments and feedback are welcome!
Now PoL has its own forum at The Mental Militia! Check
it out

Robert Greenslade
focuses his writing on issues surrounding
the federal government and the Constitution. He believes politicians at
the federal level, through ignorance or design, are systematically
dismantling the Constitution in an effort to expand their power and
consolidate control over the American people. He has dedicated himself
to resurrecting the true intent of the Constitution in the hope that
the information will contribute, in some small way, to restoring the
system of limited government established by the Constitution.

***********

If you are interested in
finding out more about the
Constitution, take a look at this book. I use it in many of my articles
and it is the best book I've found on this subject. Bob

Reprint of the 1868
edition. ''Perhaps the ablest analysis of
the nature and character of the federal government that has ever been
published. It has remained unanswered.'' This review of Judge Story's
Commentaries on the Constitution of the United States is perhaps the
ablest analysis of the nature and character of the Federal Government
that has ever been published. It has remained unanswered. Indeed, we
are not aware that any attempt has been made to challenge the soundness
of its reasoning. The great vise of Judge Story and the Federalists
consisted in desiring the clothe the federal government with almost
monarchical power, whereas the States had carefully and resolutely
reserved the great mass of political power for themselves. The powers
which they delegated to the federal government were few, and were
general in their character. Those which they reserved embraced their
original and inalienable sovereignty, which no state imagined it was
surrendering when it adopted the constitution. Mr. Madison dwelt with
great force upon the fact that ''a delegated is not a surrendered
power.'' The states surrendered no powers to the federal government --
they only delegated them. 160 pages.